In a recent ruling in an important case involving stream access, District Court Judge Loren Tucker in Madison County determined that issues concerning the balance of private property rights and prescriptive easements must be determined on a case-by-case basis, using evidence of County maintenance needs.The public’s desire for access is not a factor.

Judge Tucker’s determination was made at the request of the Montana Supreme Court, which concluded that a public right-of-way exists on the Seyler Lane bridge which crosses the Ruby River in Madison County. While the Public Land/Water Access Association (“PLWAA”) have been eager to claim that Judge Tucker’s ruling was a victory for anti-property rights groups, the decision and its consequences are not so clear-cut.

In the dispute between PLWAA and Madison County it was noted that while most county roads have a right-of-way of 60 feet that is established through dedication of a public easement, Seyler Bridge was established through prescription (i.e. continuous public use) not dedication.PLWAA argued that the public should be granted a 60-foot easement to be used for public access to the river.Judge Tucker rejected that claim and instead granted a 5-foot easement on either side of the bridge, stating:

“Madison County and the State of Montana via their agents have traveled upon a strip of ground between the abutments and the high water marks of the river extending an average of approximately 5 feet upstream and downstream from the ends of the bridge abutments. These distances inform the court of that which is reasonably necessary for use, maintenance and enjoyment.”

The language that Judge Tucker uses is important to note. His decision was based on historic use by the government and what was “reasonably necessary” for maintenance. It establishes that the public does not have an unquestionable right to access wherever it wants. The ruling also indicates that when there are disputes they need to be individually adjudicated to determine a reasonable size for the right-of-way. This ruling flies in the face of what PLWAA and other extreme-access groups across the state hope to achieve—the erosion of private property rights and the establishment of unlimited public access across the board. This ruling establishes that the public does not have unchecked access at bridges and puts in place a means for determining where access is acceptable and where it is a clear infringement on individual private property rights.

To further support this conclusion, Judge Tucker states in his opinion that,

“…the width of a prescriptively acquired county road includes the traveled way, area for lateral and subjacent support, and that which has been utilized and is reasonably required for maintenance which includes burrow pits and an area adequate for inspection,” and that “…a fence outside the area the public has historically used for travel, lateral and subjacent support, maintenance and enjoyment does not enlarge the public right of way.”

While not a resounding victory for private property owners, this decision is a step towards ensuring that the agendas of political activist groups like PLWAA aren’t allowed to trump the rights of private landowners.

You can access the full text of Judge Tucker’s decision by clicking here.